Judge Gorsuch's "Magical Notion"

By David K. Shipler

            Late in the third day of Senate Judiciary Committee hearings on the nomination of Neil Gorsuch to the Supreme Court, Sen. Mazie Hirono of Hawaii summed up the judge’s picture of American jurisprudence with three words: “a magical notion.” She called his portrait of neutral, apolitical judges interpreting the law fairly and without personal bias a Norman Rockwell painting of the courts, as if he himself weren’t being promoted by the dark money of hidden billionaires, as emphasized by Sen. Sheldon Whitehouse in a tough interrogation.

            Through incisive questioning by Democratic senators (Republicans lobbed only softballs), Gorsuch stuck resolutely to his line that there were no “Republican judges or Democrat judges.” In this phrasing he repeatedly allowed his mask to slip, since the use of the noun “Democrat” as an adjective instead of “Democratic” is embedded in the lexicon of the right, designed to deny that opposition party the mantle of representing masses of citizens. He also took several opportunities to mention that judges appointed by “Democrat” presidents had joined him in opinions. In other words, the courts transcend politics.

            It would be a grand gift to the republic if it were always so. It often is, especially on lower courts, such as the Tenth Circuit Court of Appeals where Gorsuch has served for a decade, and which are bound by precedent. He and the two other judges on his panel relied on a particularly cruel precedent when they denied an autistic child payment for private residential educational services that the local school district could not provide. The earlier case in his circuit found that under the law, such schooling “must merely be ‘more than de minimus,’” Gorsuch wrote, adding the word “merely.”

            “If anyone is suggesting that I like a result where an autistic child happens to lose,” he told Sen. Dick Durbin in the hearing, “it’s a heartbreaking accusation to me, heartbreaking.” Gorsuch had quoted the late Justice Antonin Scalia, whose seat he is poised to occupy, as saying of a judge’s decisions, “If you like them all the time, you’re probably doing something wrong.”

            The Supreme Court can be more explicitly political in its closely divided opinions. Yet a unanimous opinion came down even while Gorsuch testified, as all eight justices, in a similar Tenth Circuit case in which he did not participate, overruled his reasoning denying funds for the autistic boy. The decision prompted Gorsuch to tell Durbin, “I was wrong, Senator. I was wrong because I was bound by circuit precedent, and I’m sorry. And the Supreme Court is our boss, and we respect their last word.”

            Of course judicial precedent, the statute involved, and the Constitution are not subject to easy application in every case, and the room for interpretation, however large or small, is the space of concern for liberals and conservatives alike. “I don’t think the decisions of the courts are so robotic and so automatic,” Durbin said. “If that were the case there would be no dissents.”

            “There was no dissent in this case,” Gorsuch replied tartly.

            The notion of courts hovering above the social or political predilections of the judges might be magical, as Hirono said, but it is a myth worth embracing. Like many of society’s myths, this one describes a high standard, and the gap between that goal and reality is one that the country ought to strive to close. Sadly, the politicians have led us in the wrong direction.

            Beginning, some say, with Democrats’ rejection of President Reagan’s nominee Robert Bork in 1987, the Senate confirmation process has grown nasty and partisan. But Bork was truly well outside the norms of the society at the time. He denied that the Constitution contained a right to privacy; opposed the Court’s ruling for one man, one vote in apportioning legislative districts; opposed the 1964 civil rights law outlawing racial discrimination in restaurants and other privately owned accommodations; opposed the Supreme Court’s 1965 opinion overturning a law that prohibited contraceptives for married couples. He would have made an antediluvian justice whom Democrats were absolutely right to oppose.

Then, the Republicans’ refusal last year even to consider President Obama’s nominee, Merrick Garland, further poisoned the well. Senate Minority Leader Chuck Schumer now advocates a filibuster of Gorsuch’s nomination.

            But Gorsuch is no Bork. Gorsuch said that he did indeed see a right to privacy in the Constitution, gave no hint of opposition to civil rights measures, and stressed that “nobody is looking to return us to horse-and-buggy days” by looking to the original meaning of constitutional texts. He advocated interpreting a provision in light of today’s problems. As an example, he cited the Supreme Court’s decision that a warrantless search of a home with a heat-seeking device violated the Fourth Amendment. The same with another ruling requiring a warrant to attach a GPS tracking device to a vehicle. Technology evolves around the Constitution’s timeless principles, he seemed to be saying. Whether that is also true of shifting social sensibilities on matters such as race and sexual orientation he did not reveal.

            A question is whether he will evolve. Clarence Thomas and Samuel Alito have not; their views seem petrified in amber. The most exciting prospect is to imagine a David Souter or a John Paul Stevens, nominated by Republican presidents, maturing into the august offices they held until they saw a legal landscape much broader than envisioned by those who confirmed them. Whether that prospect exists for a brilliant, charming, rather facile 49-year-old judge is the great Gorsuch gamble.

            More than once during his marathon hearings, Gorsuch held up Justice Robert H. Jackson as a model, perhaps because of his inclination toward judicial restraint. But as President Roosevelt’s attorney general, Gorsuch noted, Jackson was a fierce advocate of executive power and, once he donned the robes of a Supreme Court justice, became a fierce opponent of overreaching executive power.

            Approvingly Gorsuch paraphrased Jackson’s observation: “Something happens to a man when he puts on a judicial robe, and I think it ought to. The change is very great and requires psychological change within a man to get into an attitude of deciding other people’s controversies, instead of waging them. It really calls for quite a changed attitude. Some never make it—and I am not sure I have.”

            Let’s hope that Neil Gorsuch makes it.